Laws need comprehensive review

By Hsu Tze-tien 許澤天  / 

Wed, May 22, 2013 - Page 8

An earlier article (“Time to review bribes, ‘mediation,’” May 11, page 8) pointed out that the legal interpretations used in the corruption case against former legislator and Executive Yuan secretary-general Lin Yi-shih (林益世) need not have invoked the notion of “actual influence,” which different people interpret in different ways. The article said it would have been perfectly possible to judge that Lin accepted bribes “by an act that belongs to the official duties,” without resorting to “actual influence.”

Let us consider the court’s interpretation of what is meant by accepting bribes “by an act that belongs to the official duties,” as mentioned in Articles 121 and 122 of the Criminal Code and Article 4, Paragraph 1, Subparagraph 5 and Article 5, Paragraph 1, Subparagraph 3 of the Anti-Corruption Act (貪污治罪條例). For one thing, it is not required for such an act belonging to an official’s official duties to have actually happened, still less for such an act to have resulted in breaking of the law.

Furthermore, it is not required for an unlawful agreement between the person offering a bribe and the one receiving it to explicitly state how the action is to be carried out or how the payment is to be delivered.

If the two sides were required to state exactly how the official was going to exercise his or her official duties, then in future anyone who wanted to pay money for favors could get away with it by simply having an unspoken understanding.

When Chen Chi-hsiang (陳啟祥), the owner of Ti Yung Co, gave Lin a big sum of money and talked with him about winning a contract, did the two of them not have an unspoken understanding about how the contract was to be arranged? Would anyone expect Chen to tell Lin how to do his job as legislator and secretary-general?

Who was Lin, after all? First, he was a legislator who could question and supervise officials, and then he became Executive Yuan secretary-general, giving him the authority to intervene in the administrative functions of the Cabinet.

Both Lin and Chen understood this perfectly well, and Chen was also very precise and clear about what he wanted Lin to do for him, so can anyone really claim that Chen’s payment had nothing to do with Lin’s official duties and was just an everyday exchange of gifts and favors?

If so, the gift was rather a generous one. When Chen gave the money to Lin to get him a contract with a state-run company — China Steel Corp — could he really have thought of Lin as just a gangster whose actions would have nothing to do with his official duties?

Did Lin really think of himself as no more than a gangster? Hardly so, especially considering that Lin used his official powers to fix the deal.

The main reason why the verdict in Lin’s case has attracted so much criticism is probably because its interpretation of the facts of the case is simply too outlandish. The judges determined that their interpretation of the facts must be based on free evaluation of evidence through inner conviction, and that the law could not determine in advance the strength of the evidence in this case, while their evaluation of the evidence still had to comply with the empirical doctrine, or rules of experience and logic, as specified in Article 155 of the Code of Criminal Procedure (刑事訴訟法).

Had they not done so, they would have made themselves a laughing stock among legal experts.

The verdict’s analysis of what is meant by “acquiring valuables or property through the use of undue influence [or] blackmail,” as described in Article 4, Paragraph 1, Subparagraph 2 of the Anti-Corruption Act, also comes as something of a surprise.

Although the verdict holds, with regard to the facts of the case, that the defendant employed intimidation to ensure that a third person or party obtained benefits in the form of the signing of a contract, it also holds that, since these were not “material valuables,” it did not constitute the aforementioned crime, but was merely an offense of taking advantage of his authority, opportunity, or means afforded by his official position to profit through extortion, as described in Article 346, Paragraph 2 and Article 134 of the Criminal Code.

What people find incomprehensible is why “valuables” have to be limited to “material” things.

When lawmakers used the phrase “bribes or other unlawful profits” in their definition of the crime of bribe-taking, they needlessly provided for separate categories of “bribes” and “other unlawful profits,” whereas the former naturally includes the latter, and the latter is merely a reminder or even a redundant addition.

If one day Taiwanese lawmakers were to realize this redundancy and delete the words “or other unlawful profits,” surely that would not mean that they thought that “immaterial” gains could not be called bribes.

When university professors were found to have claimed expenses by presenting “fake” receipts, doubts arose as to whether they belonged to the category of authorized public officials. In relation to the professors’ case, the rule expressed in Article 5, Paragraph 1, Subparagraph 2 of the Anti-Corruption Act about “fraudulently making others deliver personal property or a third person’s property under cover of legal authority,” the term “property” is much more specific than “valuables,” and it even has to be “delivered.”

However, what verdict ever said that transfers of funds carried out by bookkeepers or accountants merely caused the amount of money in professors’ bank accounts to increase, and were not the delivery of property?

An even clearer example is the corruption case involving former Chinese Nationalist Party (KMT) legislator Ho Chih-hui (何智輝). Ho used his powers as a legislator to pressure the National Science Council and its Science Park Administration to pay out cash incentives to the Taiwan Tea Corp, and then diverted money from Taiwan Tea for his own private use.

The charge on which Ho was found guilty was that of using his power as a public official to extort valuables or property. Although Ho’s own illicit gains were not actually the “material property” in question, the verdicts of the courts that heard his case, including the Supreme Court, did not deny that they could be defined as valuables. So, even if one leaves theory aside and merely deals with the facts, the way the verdict in Lin’s case was formulated is surprising.

The principle of legality, which holds that a person may only be punished for an act that is defined by law as a punishable offense, must be respected. Only a reasonable interpretation can ensure that this principle continues to be effective.

Unreasonable interpretations will cause people to doubt whether they should believe in and adhere to the principle of legality, and to doubt the credibility of the judiciary.

The interpretation, in other words, should be proportionate.

Judges in this country should not allow their judgments to be colored by political concerns.

However, that does not mean that their legal arguments with respect to individual cases are always appropriate. All that is necessary in the Lin case is for controversial points to do with relevant laws to be clarified; there is no need to cause too much political inference.

People should learn a lesson from the verdict in the Lin case, which is that reasonable and proportionate legislation and legal interpretations are fundamental for a country under the rule of law. Everyone should support education in the field of law, so that it can continue to foster outstanding talent to work in the legal field. If this is not done, and Taiwan stays at its present level in academic jurisprudence, then judgments emanating from courts in Taiwan, which is still a latecomer as far as the study of law is concerned, will continue to be marked by a high incidence of misapplication of the law.

The Anti-Corruption Act is in need of further amendment. Preferably, it should go back to the terms of the Criminal Code, to avoid needless duplication and avoid undermining the entire value system of the nation’s criminal law, as well as the public’s sense that justice is served and the penalty fits the crime.

Above all, draconian punishments are of no help in preventing and fighting corruption, and indeed they make it hard to prosecute corruption cases in the right way. They can easily lead to the law being applied and evidence evaluated is such a way as to narrow the circumstances under which the accused may be found guilty on corruption charges, and, even when people are found guilty, they can lead to the improper application of Article 59 of the Criminal Code regarding discretionary reduction of punishment, which was originally intended to only apply in extremely exceptional cases.

As to what happens when public officials receive bribes in relation to matters over which they have no authority to manage or supervise, in other words the duties and actions of other public officials, if it is necessary to punish them, then the nation must formulate clear laws to regulate it.

What Taiwanese must not do is to let the judiciary and the principle of legality take the blame, leaving judges to make a painful choice between unlawfully using the vague concept of “actual influence,” which is outside what is written in the law, on the one hand, and being labeled as “dinosaurs” on the other.

Hsu Tze-tien is an associate professor of law at National Cheng Kung University.

Translated by Julian Clegg